Miller v. Mcmanis

• Decision Date: 30 September 1870
• Citation: 1870 WL 6592,57 Ill. 126
• Parties: JOHN S. MILLER et al.v.GEORGE G. MCMANIS.
• Court: Illinois Supreme Court

57 Ill. 126

1870 WL 6592 (Ill.)

JOHN S. MILLER et al.

v.GEORGE G. MCMANIS.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Bureau county; the Hon. EDWIN S. LELAND, Judge, presiding.

George G. McManis brought two suits in debt, in the Bureau circuit court, against John S. Miller and Jacob Chritzman. The alleged ground of recovery was for the use of a patent right, which plaintiff held for the manufacture and sale of the “Luper Patent Corn Cultivator,” in the counties of Bureau, Knox, Henry and Stark, in this State. The claim was based on two separate contracts, the first a written, and the second a verbal contract.

Plaintiff only claimed to own the patent right for these counties. By the terms of the first contract, plaintiff was to receive five dollars for each machine sold in the spring of 1864, and six dollars for each machine sold in 1865 and 1866. Under the verbal contract, he was to receive two dollars for each machine manufactured and sold in these counties during the season of 1867.

These suits were subsequently consolidated into one. On the trial this stipulation was entered into by the parties:

“It is agreed in this cause, that either party may offer any legal evidence as to the actual state of the account between plaintiff and defendants on the issues of fact made up in said cause, so as to have a trial on the merits of said issues, without reference to questions as to the form of such pleadings or the form of action or defense, saving to plaintiff, that no evidence is to be offered as to matters heretofore excluded by the court and saving to defendants the right to traverse any breach of said contract not already traversed by them.”

A trial was had by the court and a jury, and the jury returned a verdict against the defendants for the sum of $1200 debt. Defendants thereupon entered a motion for a new trial, which the court overruled and rendered judgment on the verdict. They thereupon prayed and perfected this appeal.

Messrs. ECKELS & KYLE, for the appellants.

Messrs. HARVEY & TRIMBLE and Mr. GEORGE S. PADDOCK, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

It is first urged, that the court below erred in rendering judgment while the demurrer was undisposed of to defendants' tenth and eleventh pleas. On the trial in the court below, the parties entered into this stipulation:

“It is agreed in this cause, that either party may offer any legal evidence as to the actual state of the account between plaintiff and defendants on the issues of fact made up in said cause, so as to have a trial on the merits, on said issues, without reference to questions as to the form of such pleadings or the form of action or defense, saving to plaintiff that no evidence is to be offered as to matters heretofore excluded by the court, and saving to defendants the right to traverse any breach of said contract not already traversed by him.”

This stipulation obviated the necessity of settling the pleadings in the case. It authorized either party to introduce any evidence pertinent to the state of accounts in the case, so that a trial could be had on the merits. Either party could, and no doubt did, produce the same evidence they would have done had formal and well framed pleas been filed. Under the stipulation, the court was to determine what was proper evidence--what constituted a cause of action or defense--and it was not governed by the pleadings on file. If the pleas to which the demurrer was filed presented no defense, then plaintiff could, under the agreement, object to the evidence offered to prove the facts set up, and relied on in them to defeat the action. It changed the decision on the averments in the pleas, from the demurrer, to the admissibility of evidence to prove the defense set up by the pleas. This stipulation waived all question as to the form of the action, the decision of the demurrer, and provides for a trial on the merits.

It is next urged, that the court below erred in excluding the judgment in the case of George G. McManis v. Miller, Glosson & Chritzman, from the jury. It will be observed, that the parties to the two suits are not the same. The suit in that case was on a contract, described as having been entered into in August, 1864, while the suits consolidated and presented by the record now before us, were upon contracts entered into, one in 1863 and the other in 1866. The first plea under which this judgment was offered, duly avers that the suit was brought on the identical covenants sued on in this case, but it fails to state that the recovery was had for damages growing out of the same breaches assigned in this declaration. There is no rule of practice more firmly established, than, to form a bar, the former recovery must be for the identical same cause of action. In this the plea is defective, as it contains no such averment. But if it did, the record, when produced, varies from the averments of the plea, as the breach in that case was on a different...